United States v. Terry Honeycutt

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0056p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee/Cross-Appellant, │
│
│
v. │
> Nos. 14-5790/5850
│
TERRY MICHAEL HONEYCUTT, │
Defendant-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 1:12-cr-00144—Harry S. Mattice, Jr., District Judge.

Argued: December 2, 2015

Decided and Filed: March 4, 2016

Before: SILER, MOORE, and GIBBONS, Circuit Judges.
_________________

COUNSEL

ARGUED: Josh Townley, TOWNLEY & LINDSAY, LLC, Rossville, Georgia, for
Appellant/Cross-Appellee. Jay Woods, UNITED STATES ATTORNEY’S OFFICE,
Chattanooga, Tennessee, for Appellee/Cross-Appellant. ON BRIEF: Christopher A. Townley,
TOWNLEY & LINDSAY, LLC, Rossville, Georgia, for Appellant/Cross-Appellee. Jay Woods,
UNITED STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee/Cross-
Appellant.

SILER, J., delivered the opinion of the court in which GIBBONS, J., joined, and
MOORE, J., joined in the result. MOORE, J. (pp. 20–23), delivered a separate opinion
concurring in the judgment.

1
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OPINION
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SILER, Circuit Judge. A jury convicted Defendant Terry Honeycutt (“Honeycutt”) of
eleven counts of conspiring to and knowingly distributing iodine while knowing it would be used
to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2), 843(a)(6), and 846.
The district court sentenced Honeycutt to concurrent terms of 60 months’ imprisonment for each
count, but declined to order any forfeiture. Honeycutt now appeals his conviction, and the
Government cross-appeals on the issue of forfeiture. For the following reasons, we AFFIRM
Honeycutt’s § 841(c)(2) convictions, VACATE his sentences on the § 843(a)(6) convictions,
and REVERSE the district court’s determination that forfeiture is not warranted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Factual Background

Honeycutt worked as the salaried employee in charge of sales and inventory in the
Brainerd Army Store—which was owned by his brother (and codefendant), Tony Honeycutt
(“Tony”). In 2008, having noticed an increasing number of “edgy looking folks” purchasing
Polar Pure, an iodine-based water purification product, Honeycutt called the Chattanooga Police
Department to ask if the iodine in Polar Pure could be used to manufacture methamphetamine.
He spoke to Tommy Farmer, Director of the Tennessee Meth and Pharmaceutical Task Force,
who confirmed that Polar Pure was being used to manufacture methamphetamine throughout the
community and urged Honeycutt not to sell it “if [he] fe[lt] uncomfortable about it.” Afterwards,
Director Farmer informed the Police Department and the Drug Enforcement Administration
(“DEA”) that Honeycutt was selling Polar Pure.

The Brainerd Army Store was the only local retailer that stocked Polar Pure; the product
was kept out of sight behind the sales counter, and only Honeycutt and his brother sold it. Each
bottle of Polar Pure contains about eight grams of iodine crystals that, if used as instructed, could
purify up to five hundred gallons of water. Over time, Honeycutt sold increasing quantities of
Nos. 14-5790/5850 United States v. Honeycutt Page 3

iodine, including as many as twelve bottles of Polar Pure in a single transaction (i.e., enough
iodine to purify six thousand gallons of water).

In 2009, the DEA, in conjunction with state and local law enforcement, began
investigating the Polar Pure sales at the store. The investigation involved surveillance,
monitoring of iodine sales, controlled buys by an undercover agent, direct conversations with
Honeycutt and his brother, attempts by officers to convince the brothers to stop selling the
product to meth producers, and, ultimately, the execution of a search warrant in 2010.

The search revealed that in a three-year period, Polar Pure became the store’s highest-
grossing item, generating upwards of $269,000 in profit from the sale of more than 20,000
bottles of Polar Pure. Upon questioning, Honeycutt indicated that he and his brother had adopted
a “don’t-ask-don’t-tell” policy after discussions with their iodine supplier. Pursuant to the
warrant, agents seized the store’s inventory of 307 bottles of Polar Pure. Agent David Shelton
testified that after the Brainerd Army Store closed, following the execution of the warrant, the
meth labs using the red phosphorus method that required iodine dropped to an “insignificant
level,” becoming “rare” and “fairly non-existent” in the region.

II. Procedural History

A federal grand jury indicted the brothers for various offenses regarding their distribution
of iodine while knowing or having reasonable cause to believe it would be used to manufacture
methamphetamine. Tony pled guilty, and Honeycutt went to trial. Honeycutt was acquitted of
three charges in the indictment, and convicted of the remaining eleven—which involved
conspiring to and knowingly distributing iodine in violation of 21 U.S.C. §§ 841(c)(2), 843(a)(6),
and 846—although at sentencing the district court merged the counts of the §§ 841(c)(2)
and 843(a)(6) offenses that occurred on the same day.

The district court sentenced Honeycutt to concurrent terms of 60 months’ imprisonment
for each count. It declined to order any forfeiture, reasoning in particular that, as a salaried
employee, Honeycutt did not reap the proceeds of the conspiracy.
Nos. 14-5790/5850 United States v. Honeycutt Page 4

DISCUSSION

I. Sufficiency of the Evidence

A. Waiver

As a threshold matter, Honeycutt disputes the sufficiency of the evidence at various
points in his appeal, and yet no sufficiency challenge appears in his statement of the issues.
Federal Rule of Appellate Procedure 28(a) explicitly states that an “appellant’s brief must
contain . . . a statement of the issues presented for review.” Fed. R. App. P. 28(a)(5) (emphasis
added); United States v. Baylor, 517 F.3d 899, 903 (6th Cir. 2008). Because Honeycutt failed to
list these evidentiary challenges among his nine issues presented on appeal, we could dismiss
Honeycutt’s sufficiency arguments as waived. See, e.g., Barrett v. Detroit Heading, LLC, 311 F.
App’x 779, 796 (6th Cir. 2009) (holding that “[t]he provisions of Rule 28(a) are . . .
unambiguously mandatory,” and deeming waived an argument not listed in the statement of
issues presented). Even assuming that this issue was properly preserved, however, his arguments
are plainly meritless.

B. Standard of Review

Evidence is sufficient to support a conviction if, “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt” when “all of the evidence is . . . considered.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979).

C. Conspiracy to Violate §§ 841(c)(2) and 843(a)(6)

To prove the existence of the conspiracy alleged in Counts One and Two, “the
government was required to prove, beyond a reasonable doubt, ‘(1) an agreement to violate drug
laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.’”
United States v. Pritchett, 749 F.3d 417, 431 (6th Cir. 2014) (quoting United States v. Gibbs,
182 F.3d 408, 420 (6th Cir. 1999)). Here, the Government presented ample evidence for a
rational juror to convict Honeycutt of conspiracy to violate §§ 841(c)(2) and 843(a)(6).
Nos. 14-5790/5850 United States v. Honeycutt Page 5

Regarding the first element, the evidence showed that Honeycutt and his brother jointly
agreed to violate the drug laws by providing iodine for the manufacture of methamphetamine.
On November 23, 2009, Tony said, in Honeycutt’s presence, “we really don’t ask and [the
customers] don’t tell” why they are buying iodine—even though they had been warned that the
type of iodine they were selling was preferred by meth cooks. In 2010, Honeycutt told Agent
Shelton that they adopted their don’t-ask-don’t-tell policy based on the advice of Bob Wallace,
their iodine supplier. Honeycutt and his brother both admitted selling iodine, and they were the
only ones selling iodine at the store. The evidence thus showed that the brothers shared “a tacit
or mutual understanding among the conspirators [that] is sufficient” to show an agreement to
violate the drug laws. United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007).

As for the second and third elements, the evidence was more than adequate to establish
Honeycutt’s knowledge of and willing participation in the conspiracy. For instance, the
placement of the iodine behind the counter out of view of regular customers, as well as
Honeycutt’s deceptive response to Agent Shelton’s request for an estimate of the monthly iodine
sales reflected knowledge of the conspiracy to violate drug laws and possible intent to delay
discovery of the conspiracy. Knowledge of the conspiracy was also manifest in Honeycutt’s
assertion of a limit on iodine sales that was repeatedly exceeded. Finally, his knowledge of and
participation in the conspiracy was proven by his possession and distribution of extraordinary
quantities of iodine; his responsibility for the store inventory and for ordering iodine from the
supplier; and his engagement in direct sales. With the increasing sales in the face of multiple
warnings from law enforcement officers, Honeycutt clearly demonstrated his knowledge about,
and continued intent to participate in, the conspiracy.

D. Substantive Violations of §§ 841(c)(2) and 843(a)(6)

The evidence also sufficed to support Honeycutt’s substantive convictions under
§§ 841(c)(2) and 843(a)(6). To prove a violation of § 841(c)(2), the Government must establish
that a defendant (1) knowingly or intentionally possessed a listed chemical while (2) knowing, or
having reasonable cause to believe, that the listed chemical would be used to manufacture a
controlled substance. See Pritchett, 749 F.3d at 428. Similarly, § 843(a)(6) requires that the
Government prove that a defendant possessed a chemical or other item which could be used to
Nos. 14-5790/5850 United States v. Honeycutt Page 6

manufacture a controlled substance, and, at the time of such possession, knew, intended, or had
reasonable cause to believe it would be used in the manufacture of a controlled substance. See
United States v. Swafford, 512 F.3d 833, 845 n.7 (6th Cir. 2008). The main difference between
the two provisions is that § 841(c)(2) requires that the chemical be listed and § 843(a)(6) does
not. In this case, the Government presented sufficient evidence for a rational juror to convict
Honeycutt of violating both statutes.

With respect to the element of possession, the store’s records reflected the sale of more
than 20,000 bottles of iodine, and only Honeycutt and his brother sold it.

As for the element of knowing, or having reasonable cause to believe, that the iodine
would be used to manufacture a controlled substance, Honeycutt was familiar with the
manufacturing process for methamphetamine. He knew cooking meth requires pseudoephedrine,
and he understood that although iodine is used in the process, it is not part of the finished
product.

Despite repeated warnings by several law enforcement officers that the iodine he was
selling was flowing directly into the meth labs of the area, Honeycutt nonetheless continued to
sell Polar Pure. And again, although it became the store’s best-selling product, he did not
display it openly, but rather hid it under the sales counter and sold it only to those customers who
requested it—and did so on a don’t-ask-don’t-tell basis. Moreover, when agents asked
Honeycutt to look at photos of suspects who they believed purchased iodine at the store to cook
meth, Honeycutt became visibly nervous, indicating that he knew, or reasonably should have
known, that said customers were using his iodine to make methamphetamine.

II. Multiplicitous Convictions Under 21 U.S.C. §§ 841(c)(2) and 843(a)(6)

Honeycutt next argues that the district court erred by allowing the jury to consider the
charged violations of both §§ 841(c)(2) and 843(a)(6). Asserting that “the district court
erroneously treated [§§ 841(c)(2)] and [843(a)(6)] as redundant statutes,” he contends that
§ 841(c)(2) applies only to listed chemicals, while § 843(a)(6) applies only to “unlisted”
chemicals. Because the facts of his case did not involve an “unlisted” chemical, Honeycutt
contends that “the ‘mirrored’ § 843(a)(6) counts reduced the Government’s burden of proof,
Nos. 14-5790/5850 United States v. Honeycutt Page 7

unduly confused the jury, and the result of the trial would have been different absent the
§ 843(a)(6) counts.” He is mistaken.

First, he erroneously states that de novo review is the applicable standard. If he were
claiming that he had actually been convicted and sentenced for multiplicitous counts in violation
of the Double Jeopardy Clause, we would apply a de novo review to determine the issue of
multiplicity. See Swafford, 512 F.3d at 844. However, when a district court permits
multiplicitous counts to go to a jury and then merges them post-verdict, we apply an abuse-of-
discretion standard in reviewing that decision. See United States v. Throneburg, 921 F.2d 654,
657 (6th Cir. 1990) (“[T]he district court has discretion in deciding whether to require the
prosecution to elect between multiplicitous counts . . . . [and] [w]e may reverse only for an abuse
of discretion.”) (citing United States v. Reed, 639 F.2d 896, 904 n.6 (2d Cir. 1981))).

Second, our decision in Swafford does not support his view that § 843(a)(6) applies only
to “unlisted” chemicals, nor does Swafford dictate a different outcome from the district court’s
decision. In that case, we applied the test set forth in Blockburger v. United States, 284 U.S.
299, 304 (1932), determined that §§ 841(c)(2) and 843(a)(6) are in fact multiplicitous, and held
that “[b]ecause multiplicity exists, the charges must be merged under § 841(c)(2) to satisfy the
prohibition against double jeopardy.” Swafford, 512 F.3d at 844–46. In this case, the district
court agreed with Swafford that the overlapping convictions were multiplicitous and remedied
the issue by merging the convictions at sentencing.

We have previously held that multiplicity can be thus resolved. Throneburg, 921 F.2d at
657 (“[W]hen multiplicitous prosecutions and convictions occur, ‘the only remedy consistent
with the congressional intent is for the district court, where the sentencing responsibility resides,
to exercise its discretion to vacate one of the underlying convictions.’” (quoting Ball v. United
States, 470 U.S. 856, 864 (1985))).

III. The Jury Instructions and Verdict Form

A. Standard of review

Honeycutt challenges several of the jury instructions issued in this case. In reviewing
jury instructions, we must determine “whether the charge, taken as a whole, fairly and
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adequately submit[ted] the issues and applicable law to the jury.” Fencorp, Co. v. Ohio
Kentucky Oil Corp., 675 F.3d 933, 943 (6th Cir. 2012) (quoting Fisher v. Ford Motor Co.,
224 F.3d 570, 575–76 (6th Cir. 2000)). “While the correctness of jury instructions is a question
of law, which we review de novo, the refusal to give a specifically requested instruction is
reviewed for abuse of discretion. A judgment may be reversed only if the instructions, viewed as
a whole, were confusing, misleading, or prejudicial.” Id. (quoting Micrel, Inc. v. TRW, Inc.,
486 F.3d 866, 881 (6th Cir. 2007) (internal citation omitted)). Moreover, absent a timely
objection, we review only for plain error. United States v. Newsom, 452 F.3d 593, 605 (6th Cir.
2006).

B. Constructive Amendment of the Mens Rea for the Offenses

Honeycutt argues that the district court constructively amended the indictment, in that:
(1) the jury instructions repeatedly described the violations as involving the possession and
distribution of iodine while “knowing and having reasonable cause to believe that [it] would be
used to manufacture methamphetamine,” and (2) the verdict form summarized the charged
offenses as distribution or possession of chemicals “used to manufacture methamphetamine.” In
Honeycutt’s view, the jury instructions and verdict form invited the jury to convict him without
proof of the requisite mens rea—that he knew or had reasonable cause to believe that the
chemical “will be used to manufacture a controlled substance.”

Insofar as he is challenging the district court’s “would be used” phrasing—in light of the
statutory language “will be used”—he did not raise that objection below. As “would” is the past
tense of “will,” see Oxford English Dictionary Online (3d ed. 2012) (under “will” definition),
and as the jury was charged to assess Honeycutt’s mens rea at the time of the offenses, the
district court’s use of “would” was entirely appropriate. Moreover, the district court said “will”
and not “would” when reading the statutes, and we have previously affirmed convictions under
§ 841(c)(2) where the jury was asked to decide whether the defendants possessed and distributed
a listed chemical, “knowing and having reasonable cause to believe that the chemical would be
used to manufacture methamphetamine.” Pritchett, 749 F.3d at 428 (emphasis added). Thus, the
district court’s use of this phrasing in its jury instructions did not constitute error—plain or
otherwise.
Nos. 14-5790/5850 United States v. Honeycutt Page 9

Regarding Honeycutt’s claim that the indictment was constructively amended because the
verdict form did not exactly mirror its language, he raised that concern during the charge
conference, and suggested that the jury should receive only the indictment and a generic form on
which to mark guilty or not guilty for each count. The district court refrained from changing the
verdict form, but instead invited defense counsel to inform the jury during closing argument that
the verdict form was simply a “condensed” version of the indictment. In its charge to the jury,
the district court mentioned that the verdict form presented fourteen questions that corresponded
to the indictment’s fourteen counts, and emphasized that the verdict form did “not [contain] a
complete statement, but a brief summary of the charges in the indictment.” Moreover, after
informing the jury that it would receive a copy of the indictment to review during deliberations,
the district court reemphasized the summary nature of the verdict form. Therefore, Honeycutt
cannot establish that the verdict sheet “so modif[ied] essential elements of the offense charged
that there is a substantial likelihood that [he] may have been convicted of an offense other than
that charged in the indictment.” United States v. Barrow, 118 F.3d 482, 488 (6th Cir. 1997)
(quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986)).

C. Constructive Amendment with the Term “Precursor Chemical”

Next, Honeycutt claims that, because the district court said “precursor chemicals” instead
of “listed chemicals” at various points in its instructions and on the verdict form, “[t]he jury was
permitted to assume that all ‘chemicals’ are treated alike in the law.” However, not only did the
district court clearly use the term “listed chemical” throughout its instructions, but this is not a
case in which the jury heard evidence about multiple chemicals or controlled substances, not all
of which would be sufficient to sustain a conviction; rather, iodine was the only “chemical” at
issue in this case, and uncontroverted evidence established that iodine was a listed chemical.
Accordingly, as with the prior claim, Honeycutt has failed to prove any constructive amendment
of the indictment.

D. Entrapment by Estoppel Instruction

Honeycutt asserts that the Sixth Circuit pattern instruction about entrapment by estoppel
improperly shifted the Government’s burden of proof to him. However, given that entrapment
Nos. 14-5790/5850 United States v. Honeycutt Page 10

by estoppel is an affirmative defense, the district court properly required Honeycutt to bear the
burden of proof on that issue.

The challenged pattern instruction—which is principally based on the standard applied in
United States v. Levin, 973 F.2d 463, 468 (6th Cir. 1992)—requires a defendant to prove the
following factors by a preponderance of the evidence:

First, that an agent of the United States government announced that the charged
criminal act was legal.

Second, that the defendant relied on that announcement.

Third, that the defendant’s reliance on the announcement was reasonable.

Fourth, that given the defendant’s reliance, conviction would be unfair.

6th Cir. Pattern Crim. Jury Instr. 6.09 Entrapment by Estoppel (2015). The Supreme Court has
repeatedly upheld the practice of requiring a defendant to prove an affirmative defense by a
preponderance of the evidence. See, e.g, Patterson v. New York, 432 U.S. 197, 210 (1977)
(“Proof of the nonexistence of all affirmative defenses has never been constitutionally
required.”) (upholding a statute that required a defendant charged with murder to bear the burden
of proof as to the affirmative defense of acting under extreme emotional distress).

Entrapment by estoppel is an affirmative defense that does not negate an element of
either of the crimes charged here. As the Supreme Court has stated, “unless the text of the
statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the
facts that constitute the offense.” Dixon v. United States, 548 U.S. 1, 5 (2006). “Knowingly”
does not require knowledge that the facts underlying the criminal violation were unlawful. See
id. (contrasting “knowingly” with “willfully,” the latter of which “requires a defendant to have
‘acted with knowledge that his conduct was unlawful’” (quoting Bryan v. United States, 524 U.S.
184, 193 (1998))). Thus, the Government needed only to establish that Honeycutt acted
knowingly, not that he knew his conduct was illegal.

By raising the defense of entrapment by estoppel, Honeycutt was not asserting that he did
not know he was distributing iodine, nor that he did not know or have reasonable cause to
believe that the iodine would be used to manufacture methamphetamine, but that government
Nos. 14-5790/5850 United States v. Honeycutt Page 11

officials had led him to believe that such conduct was lawful. See United States v. Triana,
468 F.3d 308, 316 (6th Cir. 2006) (noting that the defense of entrapment by estoppel applies
“when an official tells a defendant that certain conduct is legal and the defendant believes that
official to his detriment”) (citations omitted). Accordingly, the defense of entrapment by
estoppel—like the defenses of necessity and duress—serves to “excuse conduct that would
otherwise be punishable,” yet “does not negate a defendant’s criminal state of mind when the
applicable offense requires a defendant to have acted knowingly.” Dixon, 548 U.S. at 7
(citations omitted). And as with the defense of duress, entrapment by estoppel enables a
defendant to “avoid liability” where “coercive conditions . . . negate[] a conclusion of guilt even
though the necessary mens rea was present.” Id. at 6–7.

Additionally, Honeycutt argues that the pattern instruction regarding entrapment by
estoppel violates Due Process.1 In particular, he focuses on the third and fourth prongs—the
former, regarding reasonable reliance, and the latter concerning the unfairness of conviction for
the crimes—although he has failed to show precisely how either factor is unconstitutionally
burdensome.

Moreover, laying the third and fourth factors aside, Honeycutt was unable to prove that
any federal agent affirmatively “announced that the charged criminal act was legal,” much less
that he reasonably relied on such an announcement. The agents did not tell him his distribution
of iodine was legal; rather, they repeatedly warned him that his customers were buying iodine to
manufacture methamphetamine.

In any event, given that his challenge to the district court’s “refusal to give [his]
specifically requested instruction is reviewed for abuse of discretion,” and the “judgment may be
reversed only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial,”
Fencorp, 675 F.3d at 943 (quoting Micrel, 486 F.3d at 881), his shot at this instruction falls well
short of the mark. The pattern instruction about entrapment by estoppel did not render the

1
He also asserts that the pattern instruction is an inaccurate and/or anomalous statement of the law.
However, insofar as he indicates that the fourth factor is unique to the Sixth Circuit, he is mistaken. See, e.g.,
United States v. Villafane-Jimenez, 410 F.3d 74, 81 (1st Cir. 2005) (reciting essentially the same four-part test).
Nos. 14-5790/5850 United States v. Honeycutt Page 12

instructions, as a whole, “confusing, misleading, or prejudicial,” and the district court did not
abuse its discretion by declining to modify that instruction.

E. Deliberate Indifference Instruction

Next, Honeycutt challenges the district court’s deliberate-ignorance instruction. This
instruction “is appropriately given when it addresses an issue reasonably raised by the evidence,
i.e., when two predicates are met: ‘(1) the defendant claims a lack of guilty knowledge; and
(2) the facts and evidence support an inference of deliberate ignorance.’” 6th Cir. Pattern Crim.
Jury Instr. 2.09 Deliberate Ignorance Commentary (2013 ed.) (quoting United States v. Mitchell,
681 F.3d 867, 876 (6th Cir. 2012)). “We have repeatedly held that this instruction is an accurate
statement of the law.” Mitchell, 681 F.3d at 876 n.51.

Honeycutt denied any guilty knowledge, and the evidence offered at trial clearly justified
a deliberate-ignorance instruction. Thus, the district court reasonably issued the instruction. See
id. at 877 (noting that “[b]oth parties had the right to have the case submitted to the jury under
instructions that would allow a full and fair evaluation of the evidence of record in light of the
theories proffered by each side”).

The deliberate-ignorance instruction did not encourage the jury to convict Honeycutt on
less than beyond a reasonable doubt. Id. at 879. Moreover, as we have previously held, “at
worst, any error in giving the instruction was harmless,” since “there is substantial evidence of
actual knowledge,” Williams, 612 F.3d at 508 (quoting United States v. Mendoza-Medina,
346 F.3d 121, 134 (5th Cir. 2003)), and given our conclusion that “a deliberate ignorance
instruction that properly states the law is harmless error,” id. (quoting United States v. Rayborn,
491 F.3d 513, 520 (6th Cir. 2007)).

F. Jury Finding of Iodine’s Status as a List I Chemical

Honeycutt asserts that the specific listing of a chemical is an element of a § 841(c)(2)
offense, because List I chemicals carry a higher statutory penalty; hence, he argues that the
district court erred by not requiring the jury to determine whether iodine was, in fact, a List I
chemical. Given that he did not raise this issue below, it is reviewable only for plain error.
Nos. 14-5790/5850 United States v. Honeycutt Page 13

As an initial matter, Honeycutt’s 60-month sentence does not run afoul of Apprendi v.
New Jersey, 530 U.S. 466 (2000), since it did not exceed “the statutory maximum that would
have applied even without the enhancing factor.” United States v. Osborne, 673 F.3d 508, 512
(6th Cir. 2012) (quoting United States v. Burns, 298 F.3d 523, 544 (6th Cir. 2002)).

As to whether iodine’s status as a List I chemical constitutes an element of a § 841(c)(2)
offense, Honeycutt correctly notes that § 841(c)(2) establishes a twenty-year maximum penalty
for a violation “involving a List I chemical” and a ten-year maximum for all other violations, and
that “any fact that increases the penalty for a crime . . . must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. However, we need not decide whether
he has identified a plain error, given that his substantial rights were clearly not affected. See
United States v. Stewart, 306 F.3d 295, 317 (6th Cir. 2002) (finding it unnecessary to discuss the
first three parts of the plain-error test because the fourth part had not been satisfied).

Even where a district court improperly withholds an element of an offense from the jury,
however, the Supreme Court has held that the error is harmless if “a defendant did not, and
apparently could not, bring forth facts contesting the omitted element.” Neder v. United States,
527 U.S. 1, 6, 19 (1999).2 Likewise, we have held that “where the evidence regarding the
omitted element is undisputed, ‘answering the question of whether the jury verdict would have
been the same absent the error does not fundamentally undermine the purposes of the jury trial
guarantee.’” United States v. Kuehne, 547 F.3d 667, 681 (6th Cir. 2008) (quoting Neder,
527 U.S. at 19). Here, each side offered evidence establishing that iodine is a List I chemical,
and Honeycutt specifically elicited testimony that iodine has been thus classified since 2007.

Like Neder, this case is “one[] where a defendant did not, and apparently could not, bring
forth facts contesting the omitted element,” and the “omitted element is supported by
uncontroverted evidence.” 527 U.S. at 18–19. Therefore, the absence of a jury finding regarding

2
Although Neder involved harmless error analysis under Rule 52(a), rather than plain error under Rule
52(b), that difference is immaterial because both standards require a showing that the error affected the defendant’s
substantial rights. See United States v. Olano, 507 U.S. 725, 734 (1993) (noting that the only difference between the
two is that “[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to
prejudice” under the plain-error standard).
Nos. 14-5790/5850 United States v. Honeycutt Page 14

iodine’s status as a List I chemical did not affect Honeycutt’s substantial rights, and the district
court did not plainly err by not requiring the jury to make such a finding.

IV. Vagueness Challenge

Honeycutt also asserts that § 841(c)(2) is unconstitutionally vague. We review
challenges to the constitutionality of a statute de novo, and “every reasonable construction must
be resorted to, in order to save a statute from unconstitutionality.” United States v. Caseer,
399 F.3d 828, 839 (6th Cir. 2005) (quoting Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101,
1105 (6th Cir. 1995)). With a vagueness claim, a defendant “bears the burden of establishing
that the statute is vague as applied to his particular case, not merely that the statute could be
construed as vague in some hypothetical situation.” United States v. Kernell, 667 F.3d 746, 750
(6th Cir. 2012) (quoting United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2001)).

Honeycutt contends that, because list chemicals are not themselves controlled substances
nor per se illegal, he may not be convicted without proof that he knew both that iodine is a listed
chemical and that it appears on List I. The district court rejected this argument, in particular
because § 841(c) does not include a different knowledge requirement between List I and List II
chemicals.

In support of his position, Honeycutt discusses at length our decision in Caseer, in which
we held that, to satisfy the mens rea requirement of § 841(a) for an offense involving khat, the
United States needed to prove the defendant knew that khat contained a controlled substance—
since khat did not appear on the listed controlled substances schedules. 399 F.3d at 841.
Confronting and rejecting the argument that the statute was unconstitutionally vague, we
explained that “the more important aspect of vagueness doctrine ‘is not actual notice, but . . . the
requirement that a legislature establish minimal guidelines to govern law enforcement,’” id. at
836 (quoting Kolender v. Lawson, 461 U.S. 352, 361 (1983)), and concluded that the “scienter
requirement” of the statute overcame “the threat to due process posed by the failure of the
controlled substances schedules to identify khat as a source of cathinone.” Id. at 830.

Unlike khat, iodine is specifically listed in the Controlled Substances Act and the Federal
Register as a list chemical. See 21 U.S.C. § 802(35); 72 Fed. Reg. 35920-01. Further, Caseer’s
Nos. 14-5790/5850 United States v. Honeycutt Page 15

concerns about a person of “ordinary intelligence” who “could unwittingly expose himself . . . to
criminal penalties,” 399 F.3d at 839, does not apply to Honeycutt, as he clearly understood that
iodine was a crucial ingredient for the methamphetamine manufacturing process. Convictions
under § 841(c)(2) require proof of “actual knowledge,” which is an “unusually specific mens rea
requirement,” United States v. Truong, 425 F.3d 1282, 1288–91 (6th Cir. 2005), that serves to
excuse the unwitting and convict the culpable. Accordingly, Honeycutt has failed to prove that
the statute was unconstitutionally vague as applied.

V. Honeycutt’s Sentencing

A. The Iodine Quantity Attributed to Honeycutt

At sentencing, the district court determined Honeycutt’s Guideline range based upon a
finding that his offenses involved “1.3 KG or more of Iodine” and a “List I chemical.” Citing
United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014), Honeycutt asserts that “drug quantity
is an element of the offense in § 841,” and argues that the jury should have made a specific
finding regarding this element. However, Dado involved § 841(b)(1)(A), under which drug
quantity affects the statutory minimum and maximum and, thus, requires a jury finding under
Apprendi. In this case, the amount of iodine attributed to Honeycutt had no impact on the
statutorily-authorized maximum penalty, so Dado is of no help to him. The district court was
authorized to determine the iodine quantity for which Honeycutt would be held responsible, and
its determination was not clearly erroneous. See United States v. Samuels, 308 F.3d 662, 670
(6th Cir. 2002) (reviewing drug quantity factual findings for clear error). Moreover, “drug
quantity need only be established by a preponderance of the evidence, and an estimate will
suffice so long as it errs on the side of caution.” United States v. Anderson, 526 F.3d 319, 326
(6th Cir. 2008) (citing United States v. Davis, 981 F.2d 906, 911 (6th Cir. 1992)).

In the instant case, the evidence strongly supported the district court’s analysis of the
iodine quantity attributable to Honeycutt. The store records indicated sales of more than
21,000 bottles of Polar Pure, each containing roughly eight grams of iodine crystals. Further, any
quantity above 1.3 kilograms of iodine yields the same offense level of 30. Since the record
Nos. 14-5790/5850 United States v. Honeycutt Page 16

establishes a quantity of iodine over 1.3 kilograms, the district court did not clearly err in its
quantity determination.

B. Term in Excess of Statutory Maximum

Honeycutt asserts, and the Government concedes, that the district court’s sentence of
concurrent terms of 60 months’ imprisonment for the three § 843(a)(6) violations exceeds the
statutory maximum. Given that § 843(a)(6) does in fact establish a maximum penalty of four
years’ imprisonment, we will vacate the sentence on those counts. Even though Honeycutt’s
aggregate 60-month sentence remains unchanged in light of the § 841(c)(2) violations, we will
remand this case to permit the district court to impose a sentence within the four-year maximum
for the § 843(a)(6) counts.

VI. Forfeiture

In its cross-appeal, the Government asserts that the district court erred in refusing to order
any forfeiture, given that the governing statute mandates the order of forfeiture if the requisite
elements are satisfied. We review a district court’s interpretation of federal forfeiture law de
novo, United States v. Hill, 167 F.3d 1055, 1073 n.13 (6th Cir. 1999), a district court’s findings
of fact for clear error, and the sufficiency of those facts de novo, United States v. Jones, 502 F.3d
388, 391 (6th Cir. 2007).

Section 853(a)(1) states that “[a]ny person convicted of a violation of this subchapter or
subchapter II of this chapter . . . shall forfeit . . . any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly, as a result of such violation.” Although the
district court properly noted that “the statute mandates that [the district court] order forfeiture if
the proceeds were directly or indirectly derived from the criminal enterprise,” see 28 U.S.C.
§ 2461(c); 21 U.S.C. § 853(a), it declined to order forfeiture for a number of reasons. In
particular, it found that (1) although “there was a criminal conspiracy being operated out of the
Brainerd Army Store . . . the Brainerd Army Store itself was [not] a criminal enterprise”; (2) “at
least some of th[e] Polar Pure was sold for legal purposes . . . . [and] there is no evidence that
would permit the Court to make a reasoned assessment of what percentage of that Polar Pure was
due to illegal activity”; and (3) as “a salaried employee,” the district court could not “say that
Nos. 14-5790/5850 United States v. Honeycutt Page 17

[Honeycutt] personally . . . profited from th[e] illegal conspiracy.” Of these reasons, it appears
that the district court’s decision was driven mostly by its determination that Honeycutt did not
directly or indirectly reap the proceeds of the criminal enterprise.

The Sixth Circuit has not yet squarely addressed the issue of whether joint and several
liability applies to forfeiture of proceeds under 21 U.S.C. § 853. Although under another statute
we have previously reversed a district court’s forfeiture order based on insufficient proof that a
defendant had received any proceeds from fraudulent activity, observing that “[i]t is well-
established that a defendant ‘cannot be ordered to forfeit profits that he never received or
possessed,’” United States v. McLaughlin, 565 F. App’x 470, 475 (6th Cir. 2014) (quoting
United States v. Contorinis, 692 F.3d 136, 145 (2d Cir. 2012)), we also recognized that “a
defendant may ‘forfeit proceeds received by others who participated jointly in the crime’—which
is comparable to the possibility of forfeiting ‘indirectly’ obtained proceeds,” id. (quoting
Contorinis, 692 F.3d at 147). In fact, the lack of “an underlying conspiracy” in McLaughlin is
one of the reasons that we distinguished that case from United States v. Warshak, 631 F.3d 266,
332 (6th Cir. 2010)—a case in which we invoked theories of corporate and accomplice liability
to apply joint and several liability to forfeiture of revenue. 565 F. App’x at 475. Here, the
conspiracy factor distinguishes McLaughlin from the instant case.

A number of other circuits that have addressed this issue have concluded that § 853
mandates joint and several liability among coconspirators for the proceeds of a drug conspiracy.
See, e.g., United States v. Roberts, 660 F.3d 149, 165 (2d Cir. 2011), cert. denied, 132 S. Ct.
1640 (2012) (“In the case of a narcotics conspiracy [under § 853(a)(1)], this mandatory liability
[regarding forfeiture] is joint and several among all conspirators.”); United States v. Van Nguyen,
602 F.3d 886, 904 (8th Cir. 2010) (holding that under § 853, a defendant “may be held jointly
and severally liable for all of the foreseeable proceeds of the conspiracy”); United States v. Pitt,
193 F.3d 751, 765 (3d Cir. 1999) (“21 U.S.C. § 853(a)(1) imposes joint and several liability with
respect to forfeiture.”); United States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996)
(concluding that § 853(a)(1) “is not limited to property that the defendant acquired individually
but includes all property that the defendant derived indirectly from those who acted in concert
with him in furthering the criminal enterprise”), cert. denied, 520 U.S. 1281 (1997). On the other
Nos. 14-5790/5850 United States v. Honeycutt Page 18

hand, at least one circuit has held that § 853 does not countenance joint and several liability. See
United States v. Cano-Flores, 796 F.3d 83, 90–95 (D.C. Cir. 2015) (criticizing the circuits that
have invoked Pinkerton v. United States, 328 U.S. 640 (1946), to apply joint and several liability
to § 853, and holding otherwise—based on the plain meaning of “obtained,” the language of
related Sentencing Guidelines passages, the rule of lenity, and the canon of constitutional
avoidance). It is unnecessary to probe the reasoning of Cano-Flores, however, given that we are
precedentially bound by our own reasoning as laid down in the RICO forfeiture context. See
McHan, 101 F.3d at 1042 (“We generally construe the drug and RICO forfeiture statutes
similarly.”).

In United States v. Corrado, 227 F.3d 543 (6th Cir. 2000), we determined that “co-
conspirators in a RICO enterprise should be held jointly and severally liable for any proceeds of
the conspiracy.” Id. at 553. Echoing the rationale of sister circuits that had so concluded, we
held that “[t]he government is not required to prove the specific portion of proceeds for which
each defendant is responsible. Such a requirement would allow defendants ‘to mask the
allocation of the proceeds to avoid forfeiting them altogether.’” Id. (quoting United States v.
Simmons, 154 F.3d 765, 769-70 (8th Cir. 1998) (quoting United States v. Caporale, 806 F.2d
1487, 1508 (11th Cir. 1986))).

Although Corrado did not specifically concern § 853, the relevant language and structure
of the two statute’s forfeiture provisions are virtually identical: both contain the mandatory “shall
forfeit” phrasing; both demand the forfeiture of “any property constituting, or derived from, any
proceeds [that] the person obtained, directly or indirectly,” as result of the violation; and both
dictate that their provisions “shall be liberally construed to effectuate [their] purposes.”
Compare 21 U.S.C. § 853(a), (a)(1), (o), with 18 U.S.C. § 1963(a), (a)(3), and 18 U.S.C. § 3731.
We find that our holding and rationale in Corrado carries equal weight in the § 853 context.
Moreover, neither the district court’s above-mentioned concerns nor Honeycutt’s arguments
militate otherwise. See Warshak, 631 F.3d at 332 (“[T]he argument that certain sales were
legitimate gains no traction. Any money generated through these potentially legitimate sales is
nonetheless subject to forfeiture, as the sales all resulted ‘directly or indirectly’ from [the]
conspiracy.”); United States v. Darji, 609 F. App’x 320, 321–22 (6th Cir. 2015) (upholding a
Nos. 14-5790/5850 United States v. Honeycutt Page 19

district court’s application of joint and several liability for forfeiture of proceeds, even though a
defendant “received only a reasonable salary”). And finally, and most importantly, “[e]ven if we
were persuaded by [Honeycutt]’s argument and [the district court]’s rationale, we are bound by
the [Corrado] decision,” as “[i]t is firmly established that one panel of this court cannot overturn
a decision of another panel; only the court sitting en banc can overturn such a decision.” United
States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000) (citing United States v. Smith, 73 F.3d 1414,
1418 (6th Cir. 1996)).3 Accordingly, we conclude that the district court erred in declining to
order forfeiture in this case.

CONCLUSION

For the reasons stated above, we AFFIRM Honeycutt’s § 841(c)(2) convictions,
VACATE Honeycutt’s sentences on the § 843(a)(6) convictions, REVERSE the district court’s
determination that forfeiture is not warranted, and REMAND the case to permit the district court
to resentence Honeycutt on the § 843(a)(6) convictions and reconsider a forfeiture order
consistent with this opinion.

3
It is also worth noting that the D.C. Circuit’s criticisms in Cano-Flores, 796 F.3d at 90–95—if valid—
would apply with equal force to both the RICO and § 853 forfeiture provisions. And so, again, we would need to
overrule Corrado if we were to follow Cano-Flores.
Nos. 14-5790/5850 United States v. Honeycutt Page 20

_________________

CONCURRENCE
_________________

KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree that
Terry Honeycutt’s convictions and his sentence should be affirmed, except insofar as we must
vacate the sentences imposed for his § 843(a)(6) convictions as exceeding the applicable
statutory maximum. I also agree that we must reverse the district court’s refusal to order
forfeiture, bound as we are by a decision of a prior panel of this court that a statute involving
identical language to 21 U.S.C. § 853(a) allows the imposition of joint-and-several forfeiture
liability. I write to emphasize why that prior panel was likely incorrect, and to suggest that the
full court consider the issue en banc.

In declining to order forfeiture, the district court focused quite reasonably on the dearth
of evidence regarding Honeycutt’s financial motivations for participating in this conspiracy.
Honeycutt’s lack of ownership interest in the store and the absence of evidence describing what,
if anything, Honeycutt himself gained from the sales of Polar Pure gave the district court pause.
This concern would seem to flow directly from the forfeiture statute the district court was tasked
with applying, which provides: “Any person convicted of a violation of this subchapter or
subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to
the United States, irrespective of any provision of State law—(1) any property constituting, or
derived from, any proceeds the person obtained, directly or indirectly, as the result of such
violation.” 21 U.S.C. § 853(a). The government “must prove forfeiture by a preponderance of
the evidence,” United States v. Warshak, 631 F.3d 266, 331 (6th Cir. 2010) (quoting United
States v. Jones, 502 F.3d 388, 391 (6th Cir. 2007)), so a lack of evidence suggesting that
Honeycutt “obtained” anything would seem to be problematic.

As the majority explains, this seemingly clear statute has been interpreted otherwise.
Although no published Sixth Circuit authority addresses the issue under 21 U.S.C. § 853(a), the
forfeiture provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. § 1963(a), contains identical language, and both provisions were enacted as part of the
same law. See Comprehensive Forfeiture Act of 1984 §§ 302–303, Pub. L. No. 98-473, 98 Stat.
Nos. 14-5790/5850 United States v. Honeycutt Page 21

2040–45 (1984). We previously interpreted that provision of RICO to allow for the imposition
of joint-and-several forfeiture liability, United States v. Corrado, 227 F.3d 543, 553 (6th Cir.
2000), and have since indicated in unpublished decisions that the same applies to § 853(a), see,
e.g., United States v. Darji, 609 F. App’x 320, 331–32 (6th Cir. 2015); United States v. Logan,
542 F. App’x 484, 498–99 (6th Cir. 2013). Because I see no principled basis for distinguishing
the two statutes, I agree with the majority that we are bound to follow Corrado and hold that
joint-and-several liability is available under 21 U.S.C. § 853(a).

As the district court’s concerns demonstrate, this holding seems to be contrary to the
statute, which reaches only that property that a defendant “obtained.” Although many circuits
have held that § 853(a) allows for joint-and-several liability, Maj. Op. at 17–18, and many others
have held the same under § 1963(a),1 there has been surprisingly little explanation of the textual
basis for such a rule. In United States v. McHan, 101 F.3d 1027 (4th Cir. 1996), the court
determined that the statute’s use of the phrase “obtained . . . indirectly” means that it applies to
“all property that the defendant derived indirectly from those who acted in concert with him in
furthering the criminal enterprise,” id. at 1043, but joint-and-several liability reaches further than
that. It would hold a defendant responsible for property he never had, so long as a co-defendant
obtained the property. The same argument was made in a decision of the U.S. District Court for
the Southern District of New York—which the Second Circuit adopted on appeal—but that
decision also conflated property obtained indirectly by a defendant through a co-conspirator,
with property obtained by a co-conspirator alone. See United States v. Benevento, 663 F. Supp.
1115, 1118 (S.D.N.Y. 1987), aff’d, 836 F.2d 129 (2d Cir. 1988). Other decisions, including our
decision in Corrado, largely gloss over the statutory text.

Although no contrary authority existed when we decided Corrado, the D.C. Circuit has
recently questioned the circuit consensus, emphasizing the plain language of § 853(a). See
United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015). The statute, the D.C. Circuit held,
“appears, on its face, to embrace only property that a defendant has ‘obtained,’” and using the
1
See United States v. Edwards, 303 F.3d 606, 643 (5th Cir. 2002), cert. denied, 537 U.S. 1192 (2003);
United States v. Simmons, 154 F.3d 765, 769–70 (8th Cir. 1998); United States v. Hurley, 63 F.3d 1, 22 (1st Cir.
1995), cert. denied, 517 U.S. 1105 (1996); United States v. Masters, 924 F.2d 1362, 1369 (7th Cir.), cert. denied,
500 U.S. 919 (1991); United States v. Caporale, 806 F.2d 1487, 1506–08 (11th Cir. 1986), cert. denied, 483 U.S.
1021 (1987).
Nos. 14-5790/5850 United States v. Honeycutt Page 22

term “indirectly” to impose co-conspirator liability “reads the word ‘obtained’ out of the statute.”
Id. at 91. Simply put, “[i]n ordinary English a person cannot be said to have ‘obtained’ an item
of property merely because someone else (even someone else in cahoots with the defendant)
foreseeably obtained it.” Id. The D.C. Circuit’s textual argument is more thorough than any
conducted by the many circuits that hold that joint-and-several liability is available, and it
persuades me that we should reconsider Corrado.

I find that the other reasons given by courts for applying joint-and-several liability are
likely to be equally inadequate. Many rely on a Pinkerton v. United States, 328 U.S. 640 (1946),
theory that a conspirator is liable for the reasonably foreseeable actions of co-conspirators,
Simmons, 154 F.3d at 770; McHan, 101 F.3d at 1043; Hurley, 63 F.3d at 22; Caporale, 806 F.2d
at 1508, but the Pinkerton doctrine “speaks only to a defendant’s substantive liability—not to the
consequences of such liability,” Cano-Flores, 796 F.3d at 94, making it an especially thin basis
for overruling the statute’s plain text. Nor is the general rule that §§ 853(a) and 1963(a) should
be construed broadly, United States v. Russello, 464 U.S. 16, 26–29 (1983); 21 U.S.C. § 853(o),
a sufficient reason to override their plain language, contrary to the suggestions of McHan, 101
F.3d at 1043, and Caporale, 806 F.2d at 1507. In any event, “even if the statute were ambiguous
in the sense of permitting the government’s construction, ‘[t]he rule of lenity requires ambiguous
criminal laws to be interpreted in favor of the defendants subjected to them.’” Cano-Flores, 796
F.3d at 93–94 (quoting United States v. Santos, 553 U.S. 507, 514 (2008)).

I am sensitive to concerns that precluding joint-and-several liability may frustrate the
government’s ability to collect illicit proceeds, either due to the Eighth Circuit’s concern that it
might “allow defendants to mask the allocation of the proceeds,” Simmons, 154 F.3d at 770
(internal quotation marks omitted), or the First Circuit’s warning that “[i]f conclusive weight
were given to who physically handled the money, a low-level courier or money counter could be
liable for vast sums, while other higher level conspirators could easily escape responsibility,”
Hurley, 63 F.3d at 22, but I am not convinced that the absence of joint-and-several liability
would frustrate collections as much as these decisions anticipate. Moreover, the First Circuit’s
concern ignores the ways in which property may be “indirectly obtained” by a higher-level
conspirator, who may not possess it, but who ultimately controls it and reaps the financial
Nos. 14-5790/5850 United States v. Honeycutt Page 23

benefits of the illegal operation. See Cano-Flores, 796 F.3d at 92. In any event, in the absence
of a statutory basis for requiring the imposition of joint-and-several liability, it would seem to be
Congress’s job to provide an expanded mechanism for obtaining forfeiture.

In light of my concerns regarding the correctness of our decision in Corrado, I believe en
banc consideration is appropriate to consider whether Corrado should be overturned.